Regina v Oto - Ruling on Issue of Recusal [2018] SBMC 2; Criminal Case 714 of 2016 (10 May 2018)

IN THE SOLOMON ISLANDS MAGISTRATES’ COURT

AT HONIARA

Criminal Case No. 714 of 2016

___________________________________________________________________________

REGINA

v.

Stephen JUDE OTO

___________________________________________________________________________

Coram: Principal Magistrate Ms. Fatimah Taeburi

Crown: Mr. Ronald Bei Talasasa.

Ms. Freliz Fakarii

Ms. Dalcy Belapitu

Ms. Patricia Tabepuda

Defence: Mr. Amos Ngaingeri

Date of Hearing: 9^th May 2018

Date of Ruling: 10^th May 2018

___________________________________________________________________________

RULING ON ISSUE OF RECUSAL

___________________________________________________________________________

1. This is a ruling on whether I should recuse myself from continuing to deal with this matter.
   
2. The accused here is charged with eleven counts of official corruption.
   
3. He was the former Financial Controller of the Ministry of Police, National Security and Correctional Services.
   
4. He pleaded not guilty to all charges and a trial has commenced.
   
5. This current issue came about after a person identifying himself as Steven Oto contacted someone in my family with respect to this case.
   
6. I disclosed the entire information to parties as soon as practicable.
   
7. I must make it clear that none of the parties have made any application for me to disqualify myself based on the information disclosed.
   
8. I had on my own initiatives invited counsels to make submissions on this issue.
   
9. The issue here is whether what had transpired would raise a situation of apprehension of bias in the mind of an ordinary lay person.
   
10. The starting point in law is of course the Constitution, which gives the right to every person charged with a criminal offence to be afforded a fair hearing by an independent and impartial court.
    
11. The law as clearly stated in the case of Regina v Cawa is follows;
    

“Clearly the test in my view is the appearance of bias or the impression given by the reasonable member of the public sitting in the gallery of the possible likelihood of bias”^[1]

12. The rationale behind this test is also clearly stated in Cawa;
    

“The reason is plain enough. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking, “The Judge was bias”. In our view therefore the correct test to apply is whether there is the appearance of bias, rather than whether there is actual bias. We conclude that the test to be applied is, would a reasonable and fair minded person sitting in the court and knowing all the relevant facts, have a reasonable suspicion that fair trial for the applicant was not possible”^[2]

13. I appreciate the case authorities submitted by Mr. Talasasa. I however will rely on the cases decided in our jurisdiction as they are binding on this court. I acknowledge that the position in law on this issue is the same in this jurisdiction and that in other common wealth jurisdictions.
    
14. Now coming back to the issue at hand, I find that this is a desperate attempt by someone whose identity is yet to be proved, to somehow influence the manner in which this case is determined.
    
15. This approach is indirect because it was not made directly and personally to me as the judicial officer presiding in the matter.
    
16. This attempt to converse was not welcomed nor was it entertained.
17. I do not have any personal or social association with this defendant, nor does any member of my family and the person contacted.
    
18. I and other members of my household do not even have the defendant’s contact details prior to the incident.
    
19. The person contacted does not even know how his mobile number was obtained.
    
20. I disclosed the information as to the incident as soon as I reasonably can.
    
21. The incident, in my view is too isolated and remote to cast even a shade of suspicion.
    
22. In my view, no reasonable and fair minded person will think that there is likelihood of bias in the facts and circumstances of this incident.
    
23. I also take into account that this incident is not the first and will not be the last of its kind. Judicial officers will continue to face this kind of situation where others will try to influence the determination of any case.
    
24. The courts should not be too quick to disqualify itself whenever any such approach is made. Because that would mean that anyone at any time can get a Magistrate out of a particular case. This kind of practise should not be encouraged.
    
25. I will not disqualify myself or recuse myself from dealing with this matter. I will continue to preside over this case.
    
26. Right to appeal within 14 days.
    

__________________

Ms. Fatimah Taeburi

Principal Magistrate

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^[1] [2006] SBHC 18; HCSI-CRC 315 of 2004
^[2] Ibid